Court of Appeals of Indiana | Opinion 53A04-1607-CR-1691 | June 09, 2017 Page 1 of 8

ATTORNEY FOR APPELLANT

Patrick V. Baker

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Ellen H. Meilaender

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Lawrence Benton Roper,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

June 09, 2017

Court of Appeals Case No.

53A04-1607-CR-1691

Appeal from the Monroe Circuit 

Court

The Honorable Kenneth G. Todd, 

Judge

Trial Court Cause No.

53C03-1506-F2-618

May, Judge.
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[1] Lawrence Benton Roper appeals his convictions of two counts of Level 4 felony 

dealing cocaine1 and one count each of Level 5 felony dealing cocaine2 and 

Level 5 felony dealing a narcotic drug.3

 He argues his convictions should be 

discharged because the trial court did not comply with his Criminal Rule 4(B) 

request for a speedy trial. We affirm.

Facts and Procedural History

[2] On June 25, 2015, the State charged Roper with three counts of Level 4 felony 

dealing cocaine,4 and one count each of Level 2 felony dealing cocaine,5 Level 4 

felony possession of a firearm by a serious violent felon,6 and Level 5 felony 

dealing a narcotic drug. The State further alleged Roper was a habitual 

offender.7

 At his initial hearing on June 25, 2015, Roper indicated he thought 

he “would be [his] best attorney in all this,” (Tr. at 8), and proceeded pro se. He 

also verbally requested a “fast and speedy trial.” (Id. at 10.) The judge at that 

hearing stated, “I’ll make sure that Judge Todd gives to you notice about the 

 

1 Ind. Code §§ 35-48-4-1(a)(1) & 35-48-4-1(c)(1) (2014). 

2 Ind. Code § 35-48-4-1(a)(1) (2014). 

3 Ind. Code § 35-48-4-1(a)(1) (2014). 

4 The State later amended one of these counts to a charge of Level 5 felony dealing cocaine.

5 Ind. Code §§ 35-48-4-1(a)(2) & 35-48-4-1(e)(1) (2014).

6 Ind. Code § 35-47-4-5(c) (2014). 

7 Ind. Code § 35-50-2-8(a) (2014).
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fast and speedy trial. . . . [Y]ou need to talk to Judge Todd about that when you 

see him.” (Id. at 10, 13.) 

[3] At the June 25 hearing, the court set a pretrial conference date for August 27, 

2015. Between June 25 and August 27, Roper sent multiple pieces of 

correspondence to the court regarding statements by another person allegedly 

involved in the crimes. On August 7, 2015, the State filed a Motion to Set

Cause for Jury Trial. The court did not rule on that motion.

[4] On August 27, 2015, the parties appeared in court, but the pre-trial hearing was 

continued to September 24, 2015.

8

 The Chronological Case Summary (“CCS”)

entry for that hearing reads: “Defendant appears in custody. This cause set for 

further pretrial on September 24, 2015 at 1:30 p.m. Defendant may hire private 

counsel.” (Appellant’s App. Vol. 2 at 4.) That same day, the court entered a 

Pretrial Order that indicates the State’s anticipated witnesses, the State’s 

anticipated exhibits, and the State’s plea offer, and orders another “pretrial 

conference on 9/24/15 at 1:30 p.m.” (Id. at 41.) The CCS does not indicate

the parties filed any pleadings between August 27, 2015, and September 24, 

2015.

[5] On September 24, 2015, Roper appeared pro se at the pretrial hearing and 

requested a continuance because he had hired private counsel on September 23. 

 

8 All discussions were off-record on August 27, 2015. However, at later hearings, the parties testified 

regarding what happened that day. 
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Roper signed a motion for continuance that contained a waiver of his right to a 

speedy trial under “Criminal Rule 4.” (Id. at 42.) The trial court granted 

Roper’s motion for a continuance and set the case for jury trial on November 

30, 2015, and a pretrial conference on October 19, 2015.

[6] At the pretrial conference on October 19, the court found Roper indigent, 

appointed counsel for him, and set the next hearing for November 19. On 

November 19, Roper moved for a continuance of the trial, and the court reset 

trial for February 22, 2016. On January 14, 2016, Roper moved for a 

continuance, and the court reset trial for April 18, 2016. In March and early 

April, the court dealt with some pre-trial evidentiary issues. Roper’s jury trial 

began on April 18 and ended April 21. The jury found him guilty of four of six 

charges, and Roper then pled guilty to being a habitual offender and waived his 

right to be sentenced within thirty days. 

[7] On May 31, 2016, Roper filed a motion to discharge his conviction, arguing the 

trial court had failed to bring him to trial within the time required by Criminal 

Rule 4(B). The State filed a response to his motion. The court held a hearing 

as to the motion on the same day as Roper’s sentencing9 and denied Roper’s 

motion for discharge.

 

9 The court ordered Roper to serve four years for Level 5 felony dealing in cocaine concurrent to eight years 

for each Level 4 felony dealing in cocaine. The court ordered Roper to serve four years for Level 5 felony 

dealing in narcotic drug consecutive to those three concurrent sentences. Finally, the court attached the 

habitual offender enhancement to one of the eight-year sentences for Level 4 felony dealing in cocaine. Thus, 

Roper’s aggregate sentence is 20 years, and the court ordered him to serve that time consecutive to the 
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Discussion and Decision

[8] Roper argues the trial court erred when it did not grant his motion for discharge 

under Indiana Criminal Rule 4(B)(1), which states:

If any defendant held in jail on an indictment or an affidavit shall 

move for an early trial, he shall be discharged if not brought to 

trial within seventy (70) calendar days from the date of such 

motion, except where a continuance within said period is had on 

his motion, or the delay is otherwise caused by his act, or where 

there was not sufficient time to try him during such seventy (70) 

calendar days because of the congestion of the court calendar. 

Provided, however, that in the last-mentioned circumstance, the 

prosecuting attorney shall file a timely motion for continuance as 

set forth in subdivision (A) of this rule. Provided further, that a 

trial court may take note of congestion or an emergency without 

the necessity of a motion, and upon so finding may order a 

continuance. Any continuance granted due to a congested 

calendar or emergency shall be reduced to an order, which order 

shall also set the case for trial within a reasonable time.

[9] The text of that rule expressly requires a defendant be discharged unless brought 

to trial within seventy days. However, “the rule and subsequent interpretations 

have recognized that court congestion and other exigent circumstances may 

justify a reasonable delay beyond the seventy-day period.” Clark v. State, 659 

N.E.2d 548, 551 (Ind. 1995). “But what the rule does not contemplate, as we 

have said, is pursuit of a technical means to escape prosecution by, post-hoc, 

 

sentences from other cause numbers for which his probation was to be revoked based on the crimes 

committed under this cause number. 
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pot-shotting the trial court’s calendar.” Austin v. State, 997 N.E.2d 1027, 1041 

(Ind. 2013). 

[10] When a defendant has a speedy trial motion pending, he cannot sit idly on his 

hands: 

A movant for an early trial must maintain a position which is 

reasonably consistent with the request that he has made. It is 

incumbent upon defendant to object at the earliest opportunity 

when his trial date is scheduled beyond the time limits prescribed 

by Ind. R.Crim. P. 4(B)(1). This requirement is enforced to 

enable the trial court to reset the trial date within the proper time 

period. A defendant who permits the court, without objection, to 

set a trial date outside the 70-day limit is considered to have 

waived any speedy trial request.

Hahn v. State, 67 N.E.3d 1071, 1080 (Ind. Ct. App. 2016) (internal citations and 

quotations omitted). The same rule applies when a defendant allows the trial 

court to set “an omnibus date, and by necessary implication, a trial date, 

beyond the seventy day limit.” Goudy v. State, 689 N.E.2d 686, 691 (Ind. 1997), 

reh’g denied. If the defendant does not object in such a circumstance, he has 

waived his earlier speedy trial request. Id. 

[11] When we review Criminal Rule 4 claims, we review questions of law de novo, 

Mefford v. State, 51 N.E.3d 327, 332 (Ind. Ct. App. 2016), and we review factual 

findings of congestion or emergency for clear error. Austin, 997 N.E.2d at 1040. 

Under this standard, we consider the probative evidence and reasonable 

inferences supporting the judgment, without reweighing the evidence or 
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assessing witness credibility, and reverse only if we are left with a firm 

conviction that a mistake was made. Id. 

[12] Here, the trial court did not enter written findings on the Motion for Discharge. 

The CCS indicates simply: “Hearing is held on defendant’s Motion For 

Discharge. Court orders defendant’s Motion For Discharge is DENIED.” 

(Appellant’s App. Vol. 2 at 11) (italics removed). At the hearing on the Motion 

for Discharge, the trial court explained:

The Court would note that Mr. Roper, when he appeared for 

pretrial conference on August the . . . 27th of 2015, advised the 

Court that he was attempting to retain private counsel. I note 

that when he appeared in court on September 24th for pretrial 

conference, he advised the Court that private counsel had been 

retained the day before, consistent with his advice to the Court 

on the 27th that he was attempting to hire private counsel. Would 

note that Mr. Roper has demonstrated amply his ability to 

communicate with the Court, lodge objections and make requests 

of the Court on his own behalf, and that when he appeared in 

court on August the 27th he did not object to the resetting of the 

pretrial conference on September the 24th or any setting 

thereafter. The Defendant’s Motion for Discharge is denied.

(Tr. at 43.) The record before us supports the trial court’s statements. 

[13] Here, Roper requested a speedy trial at his initial hearing, but he made no effort 

to object or otherwise bring any violation of that speedy trial request to the 

court’s attention until after he was convicted in April 2016. He waffled about 

whether he was going to retain counsel at his initial hearing, at his bail review 

hearing, and at the hearing on August 27, 2015. That August 27, 2015, hearing 
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was mere days before the time limit would expire on Roper’s speedy trial 

request, and yet Roper did not object to the resetting of that hearing to a date 

past his speedy-trial deadline. Furthermore, at the hearing following the 

expiration of the seventy-day deadline, Roper signed a written Motion for 

Continuance that included a waiver of his right to a speedy trial under Criminal 

Rule 4. Roper’s conduct is inconsistent with a desire to have his case tried in a 

speedy manner, and acted, in conjunction with his other actions, as a waiver of 

his Criminal Rule 4(b) request.10 See Goudy, 689 N.E.2d at 691 (defendant 

waived right to speedy trial by failing to object to pre-trial hearing set outside 

deadline). 

Conclusion

[14] Roper waived his request for a speedy trial by conduct inconsistent with seeking 

a speedy trial, and we accordingly affirm the trial court’s denial of his motion 

for discharge. 

[15] Affirmed.

Bailey, J., and Robb, J., concur. 

 

10 Although we hold Roper's actions waived his right to a speedy trial, we note our concern that the trial 

court neither addressed the merits of Roper's speedy trial motion when he made it at his initial hearing on 

June 25, 2015, nor ruled on the State's August 7, 2015, motion to set Roper’s case for jury trial. While not 

dispositive in this case, a more efficient internal system for identifying and addressing motions such as the 

State's Motion to Set a Trial Date would serve to avoid confusion and ancillary litigation.